Opinion
No. 59180-1-I.
September 8, 2008.
Petition for relief from personal restraint.
In 2003, Jeffery Collins pleaded guilty to knowingly possessing and using a means of identification or financial information of three different victims to obtain six credit accounts in violation of former RCW 9.35.020 (2001). In 2006, the Washington Supreme Court in State v. Leyda, 157 Wn.2d 335, 138 P.3d 610 (2006), for the first time defined the unit of prosecution for identity theft in the second degree under former RCW 9.35.020 (2001). The court held that once a defendant unlawfully obtains a victim's means of identification or financial information, the unit of prosecution includes all subsequent unlawful uses of the victim's means of identification or financial information. Leyda, 157 Wn.2d at 345. In his personal restraint petition, Collins argues that based on Leyda, three of the six convictions violate double jeopardy by punishing him twice for the same statutory unit of prosecution. Because Leyda controls, we grant Collins's petition, vacate three of his convictions for identity theft in the second degree under former RCW 9.35.020, and remand for resentencing.
The legislature disagreed with the court's decision in Leyda and amended the identity theft statute, RCW 9.35.020, to clarify that the "unit of prosecution . . . is each individual unlawful use of any one person's means of identification or financial information." The amendment was effective June 12, 2008.
FACTS
Between June 1 and October 31, 2002, Collins unlawfully possessed a means of identification or financial information of three different individuals, James Carrington, Richard Ketcham, and Terry Ebert, and used that information to obtain credit from a number of different companies.
In October 2002, the State charged Collins with three counts of identity theft in the second degree in violation of former RCW 9.35.020(1) and (2)(b) (2001). The information alleged that Collins knowingly obtained, possessed, and used a means of identification or financial information of Carrington, Ketcham, and Ebert to obtain credit, money, goods, or services in an amount less than $1500. In March 2003, the State filed a second amended information. The State charged Collins in Count I with identity theft in the first degree and in Counts 2 to 19 with identity theft in the second degree for each time Collins used or attempted to use the means of identification or financial information of each of the three victims to obtain a credit account.
On July 31, 2003, the State filed a third amended information charging Collins with six counts of identity theft in the second degree in violation of former RCW 9.35.020(1) and (2)(b). In Count 1 and Count 2, the State alleged that Collins knowingly obtained, possessed, and used a means of identification or financial information of Carrington to obtain a Lowe's credit account and a Capital One credit account.
COUNT 1
In that you, on or about and between June 1, 2002 and October 31, 2002, in Skagit County, Washington, did knowingly obtain, possess, use and/or transfer a means of identification or financial information of another living or dead, James Carrington, with intent to commit or to aid or abet any crime and used the victim's means of identification or financial information and obtained an aggregate total of credit, money, goods, services or anything else of value that is less than one thousand five hundred dollars ($1,500) in value, or when no credit, money, goods, services, or anything of value was obtained, to wit: Lowe's credit account number 826-7548-039857-9, a Class C felony, contrary to RCW 9.35.020(1) (2)(b), and against the peace and dignity of the State of Washington.
COUNT 2
In that you, on or about and between June 1, 2002 and October 31, 2002, in Skagit County, Washington, did knowingly obtain, possess, use and/or transfer a means of identification or financial information of another, living or dead, James Carrington, with intent to commit or to aid or abet any crime and used the victim's means of identification or financial information and obtained an aggregate total of credit, money, goods, services or anything else of value that is less than one thousand five hundred dollars ($1,500) in value, or when no credit, money, goods, services, or anything of value was obtained, to wit: Capitol [sic] One credit account number 4388-6422-5141-0349, a Class C felony, contrary to RCW 9.35.020(1) (2)(b), and against the peace and dignity of the State of Washington.
Similarly, Counts 3 to 6 allege that Collins used a means of identification or financial information of Ketcham and Ebert to obtain a Verizon telephone account, a Capital One Account, a MBNA credit account, and a CIT online credit account.
Collins pleaded guilty as charged in the Third Amended Information. However, in the statement of defendant on plea of guilty, Collins did not agree that the court could "review the police reports and/or a statement of probable cause supplied by the prosecution to establish a factual basis for the plea." Instead, Collins admitted that between June 1 and October 31, 2002, he knowingly possessed and used the means of identification of each of the three victims to obtain six credit accounts.
I knowingly possessed and used the means of identification of James Carrington with intent to commit a crime and did obtain credit from Lowe's Warehouse in an amount under $1500;
I knowingly possessed and used the means of identifications of James Carrington with intent to commit a crime and did obtain credit from Capital One in an amount less than $1500;
I knowingly possessed and used the means of identification of Richard Ketcham with intent to commit a crime and did obtain credit from Verizon in an amount less than $1500;
I knowingly possessed and used the means of identification of Richard Ketcham with intent to commit a crime and did obtain credit from Capital One in an amount less than $1500;
I knowingly possessed and used the means of identifications of Terry Ebert with intent to commit a crime and did obtain credit from MBNA in an amount less than $1500;
I knowingly possessed and used the means of identification of Richard Ketcham with intent to commit a crime and did obtain credit from CIT Online in an amount less than $1500;
I admit that during September and October, 2002 I made numerous attempts to create fraudulent accounts in the names of James Carrington, Richard Ketcham and Terry Ebert, using an address of 326 Stanford Drive, Mount Vernon, Washington, 98273.
With four previous felony convictions, Collins's offender score was 9+ and the standard range was 43 to 57 months for each count. On July 31, 2003, the court entered the judgment and sentence and imposed a low end 43 month sentence on each count to be served concurrently.
On July 20, 2006, the Washington Supreme Court in Leyda, for the first time, addressed the unit of prosecution for identity theft in the second degree under former RCW 9.35.020. On September 11, 2006, Collins filed a pro se motion to modify or correct the 2003 judgment and sentence. Collins argued that based on the decision in Leyda, three of the convictions violated double jeopardy. The superior court transferred the motion to the Court of Appeals as a personal restraint petition.
ANALYSIS
To obtain relief in his personal restraint petition, Collins must show he was actually and substantially prejudiced by a violation of his constitutional rights or a fundamental error of law. In re Personal Restraint of Benn, 134 Wn.2d 868, 884-85, 952 P.2d 116 (1998). Collins contends that based on the decision in Leyda, three of his convictions violate double jeopardy by punishing him twice for the same statutory unit of prosecution.
RCW 10.73.090 bars review of collateral attack on a judgment and sentence that is filed more than one year after judgment was entered. However, RCW 10.73.100 allows a defendant to raise a double jeopardy challenge to his conviction beyond the one year time bar. The State claims that the double jeopardy exception to the time bar does not apply because Collins waived the right to raise a double jeopardy challenge by entering into the plea agreement. But unlike other claims, a defendant does not necessarily waive the right to challenge a conviction on double jeopardy grounds by pleading guilty. Menna v. New York, 423 U.S. 61, 62-63, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975); State v. Knight, 162 Wn.2d 806, 813, 174 P.3d 1167 (2008). Where a double jeopardy violation is clear from the record on appeal, the double jeopardy claim is not waived. Knight, 162 Wn.2d at 813. Here, because the double jeopardy claim is confined to the record on appeal, Collins did not waive his right to challenge his convictions on double jeopardy grounds.
Whether Collins's conviction violates double jeopardy is a question of law we review de novo. State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006). The double jeopardy clause of the Fifth Amendment to the United States Constitution provides: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . . ." U.S. Const. Amend. V. Washington State Constitution article I, section 9 also provides that: "[N]o person shall be . . . twice put in jeopardy for the same offense." Const. art. I, § 9. The two provisions afford the same protection. State v. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2005). Double jeopardy protects a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime. State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002). If a defendant is convicted of multiple violations of the same statute, the court must determine what unit of prosecution the legislature intends as the punishable act under the statute. Tvedt, 153 Wn.2d at 732.
Collins was charged with six counts of identity theft in the second degree in violation of former RCW 9.35.020(1) and (2)(b). Former RCW 9.35.020 provides in pertinent part:
(1) No person may knowingly obtain, possess, use, or transfer a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime.
(2) (b) Violation of this section when the accused or an accomplice uses the victim's means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value that is less than one thousand five hundred dollars in value, or when no credit, money, goods, services, or anything of value is obtained shall constitute identity theft in the second degree. Identify theft in the second degree is a class C felony.
In Leyda, the court held that the unit of prosecution under former RCW 9.35.020 was "any one act of either knowingly `obtain[ing], possess[ing], us[ing], or transfer[ring]'" a victim's identification or financial information with the requisite unlawful intent. Leyda, 157 Wn.2d at 345, citing former RCW 9.35.020(1). Thus, once the defendant engages in "any one of the statutorily proscribed acts against a particular victim, and thereby commit[s] the crime of identity theft, the unit of prosecution includes any subsequent proscribed conduct, such as using the victim's information to purchase goods after first unlawfully obtaining such information." Leyda, 157 Wn.2d at 345.
The defendant in Leyda unlawfully obtained a credit card belonging to the victim and used the credit card four times to make purchases. Leyda, 157 Wn.2d at 338-39. The State charged Leyda with four counts of identity theft in the second degree in violation of former RCW 9.35.020(1) and (2)(b) (2001). On appeal, Leyda argued that the multiple identity theft convictions under former RCW 9.35.020 violated double jeopardy. Based on the language of the statute and legislative history, the court concluded that that the legislature only "intended to criminalize the act by which another's identity is misappropriated, not the act(s) of using another's identity after [it is] stolen." Leyda, 157 Wn.2d at 349. Consequently, the court held that when a defendant uses a victim's means of identification or financial information multiple times, "the legislature did not intend that each `use' constitutes a separate unit of prosecution." Leyda, 157 Wn.2d at 347. The court decided that a defendant commits the crime of identity theft under former RCW 9.35.020 "the moment" he obtains a means of identification or financial information of another with the intent to commit the crime of theft and, therefore, the statute is not violated each time the defendant uses the victim's means of identification or financial information. Leyda, 157 Wn.2d at 351.
However, because identity theft is a crime against each person whose identity has been stolen, the court stated that a defendant could be charged with multiple counts of identity theft under the statute "each time he uses, possesses, transfers, or obtains a separate individual's means of identification or financial information." Leyda, 157 Wn.2d at 347. Citing State v. Ose, 156 Wn.2d 140, 124 P.3d 635 (2005) and other similar cases, the court in footnote nine also stated that the State could charge a separate unit of prosecution when a defendant has unlawfully obtained or used multiple means of an individual's identification or financial information. In Ose, the court held that the legislative intent for the crime of possessing a stolen access card was unambiguous and the defendant could be charged for each stolen credit card in her possession.
Thus, under RCW 9.35.020, when a person possesses, obtains, uses, or transfers a means of identifying information, there is only one crime. . . . whereas the defendant Ose possessed multiple access devices from multiple persons.
Because the State charged Leyda with four counts of identity theft based on multiple uses of a single means of identification or financial information, the court concluded that three of Leyda's convictions violated double jeopardy. Leyda, 157 Wn.2d at 347.
Collins pleaded guilty as charged in the third amended information to six counts of identity theft in the second degree in violation of former RCW 9.35.020(1) and (2)(b). Each count alleged that Collins obtained a means of identification or financial information for each of the three victims and used that identification or financial information to obtain credit accounts. For example, Count I alleged that Collins:
did knowingly obtain, possess, use and/or transfer a means of identification or financial information of another, . . . James Carrington, with intent to commit or to aid or abet any crime and used the victim's means of identification or financial information and obtained an aggregate total of credit, . . . or anything else of value that is less than one thousand five hundred dollars ($1,500) in value, . . . to wit: Lowe's credit account number 826-7548-039857-9. . . .
In his statement of defendant on plea of guilty, Collins refused to allow the court to review the affidavit of probable cause or any statement provided by the prosecutor to establish a factual basis for the plea. Instead, Collins admitted that he obtained and then used the means of identification of the three victims to obtain credit. For example, as to Counts 1 and 2, Collins states that he "knowingly possessed and used the means of identification of James Carrington with intent to commit a crime and did obtain credit from Lowe's Warehouse and Capital One."
Collins also admitted that he knowingly possessed and used the identification of Richard Ketcham to obtain credit from Verizon and Capital One, and possessed and used the identification of Terry Ebert to obtain credit from MBNA and a CIT online account.
Based on his plea agreement and the unit of prosecution analysis in Leyda, Collins argues that he can only be convicted of one count of identity theft for using a means of identification or financial information for each of the three victims. The State relies on footnote nine of Leyda to argue that because the definition of financial information includes credit accounts, each of the six credit accounts Collins obtained constitute the unit of prosecution. The record does not support the State's position. Neither the third amended information nor the plea specifies the particular means of identification or financial information. Collins pleaded guilty and was convicted of using "a means of identification or financial information" for three victims in violation of former RCW 9.35.020. While alleged facts could potentially support multiple counts under Leyda, because Collins did not allow the court to consider the alleged facts submitted to support probable cause, the record does not support multiple charges against him for violation of former RCW 9.35.020.
Financial information is defined as: "means any of the following information identifiable to the individual that concerns the amount and conditions of an individual's assets, liabilities, or credit: . . . Account numbers and balances . . ., and other information held for the purpose of account access or transaction initiation." RCW 9.35.005. Means of identification is defined as: "means information or an item that is not describing finances or credit but is personal to or identifiable with an individual or other person, including: A current or former name of the person . . .; a social security . . . number . . .; and other information that could be used to identify the person. . . ." RCW 9.35.005.
The State also argues that because it charged Collins with, for example, possessing or using "a" means of identification of Carrington in Count I and "a" means of identification of Carrington in Count II, the two counts constitute two different means of identification of Carrington. But again, nothing in the record indicates that Collins pleaded guilty to possessing or using more than one means of identification
for each victim. Under Leyda, Collins cannot be prosecuted for multiple uses of a single means of identification, even if he uses the identification to create multiple accounts. As charged, the State's attempt to distinguish Leyda fails. The statute and the third amended information expressly state:" a means of identification or financial information." The statute plainly prohibits use of "a means of identification or financial information." And the use of the word "or" can only signify a single alternative. Marriage of Caven, 136 Wn.2d 800, 807, 966 P.2d 1247 (1998). We conclude that as charged, Collins only pleaded guilty to using a single means of identification for each of the three victims.
The State seems to contend as an alternative argument that even if we cannot conclude Collins used a different means of identification from each victim to obtain the fraudulent credit accounts, those new accounts themselves would each constitute a separate means of identification for purposes of the unit of prosecution analysis. However, adopting the State's position would stretch the exception in footnote nine of Leyda to eviscerate the holding in the opinion. Had the Supreme Court meant that using a single means of identification to fraudulently create multiple new credit accounts constituted more than one unit of prosecution, it would have said so expressly.
We are constrained by Leyda to conclude that as charged, Collins committed the crime of identity theft under former RCW 9.35.020, when he obtained a means of identification for each of the three victims and each subsequent use of the victim's identification to obtain credit did not constitute a separate violation of the statute. We grant the personal restraint petition, vacate three of the convictions, and remand for resentencing.